The Electronic Privacy Information Center, the Electronic Frontier Foundation
and the American Civil Liberties Union urge the Commission in its implementation
of the Communications Assistance for Law Enforcement Act ("CALEA") to protect
the privacy rights of American citizens by finding that the interim standard
adopted by industry and the "punchlist" proposed by the Department of Justice
and the Federal Bureau of Investigation exceed the scope of CALEA and thus
should be rejected. The Commission has a fundamental responsibility, mandated
by Congress in CALEA, to protect the privacy interests of those using the
Nation's telecommunications system.

Congress has recognized that the need to protect individual privacy from
government intrusion, the heart of the Fourth Amendment, becomes ever more
critical as the means and opportunities to invade privacy increase. Beginning
with Section 605 of the Communications Act of 1934, Congress has set out
clear rules protecting the privacy of communications and limiting the government's
ability to surreptitiously intercept electronic communications. In 1968,
Congress established a framework to allow electronic wiretapping only under
the most limited circumstances. Congress made clear in Title III of the
Omnibus Crime Control and Safe Streets Act of 1968 ("Title III") that wiretapping
was to be an investigative means of "last resort." The Electronic Communications
Privacy Act in 1986 extended privacy protections to a new set of technologies
such as email, cellular phones and paging devices.

Congress enacted CALEA largely in response to the FBI's concern that new
technologies could be used to thwart criminal investigations. But, in attempting
to accommodate the FBI's concerns, CALEA also extended privacy protections
to newer technologies and required technical surveillance standards to protect
privacy. The Commission has the authority -- and, indeed, the responsibility
-- to ensure that privacy interests are accorded the highest priority in
the implementation of CALEA. The Commission should find that the industry's
interim standard and the DoJ/FBI Petition frustrate the privacy interests
of federal statutes and of the Fourth Amendment. We urge the Commission
to reject the industry standard and the DoJ/FBI punchlist proposal and to
exercise its duty under CALEA to protect the individual privacy that is
a vital component of our nation's foundation.

This rulemaking proceeding represents the first opportunity for privacy
interests to participate in the implementation of CALEA. Privacy interests
did not have an effective voice in the proceedings that led up to the interim
standard and the DoJ/FBI punchlist. In this Further Notice of Proposed
Rulemaking, however, the Commission makes the apparently final decision
that it does not intend to reexamine any of the "uncontested" technical
requirements of the interim standard. The Commission's determination that
it will not issue a traditional notice of proposed rulemaking explaining
the standard it proposes to approve and seeking public comment on that standard
ensures that the public ñ and in particular privacy interests ñ
will have no opportunity to be effectively apprised of the contents of the
standard that will determine the wiretap functions that will be built into
the Nation's telecommunications system. Making this final decision in a
notice of proposed rulemaking is inconsistent with the Administrative Procedure
Act. Also, by foreclosing discussion of a standard arrived at solely by
industry and law enforcement, the Commission undermines its responsibility
to protect the public's privacy interests in implementing CALEA.

2. Permitting Law Enforcement to Obtain Call Content Information
in Packet-Mode Communications Without Proper Authorization Violates
the Fourth Amendment and Title III of the 1968 Wiretap Act.*

B. The Location Tracking Provisions Contained in the Industry Standard
Are Neither Contemplated Nor Permitted Under CALEA, and Law Enforcement
Access to that Information Without a Warrant Would Result in an Unconstitutional
Invasion of Privacy. *

The Electronic Privacy Information Center ("EPIC"), the Electronic Frontier
Foundation ("EFF") and the American Civil Liberties Union ("ACLU") urge
the Commission to protect the privacy rights of American citizens as it
exercises its congressionally mandated authority to assess whether the capabilities
sought in the petition filed by the Federal Bureau of Investigation and
the Department of Justice (the "DoJ/FBI Petition") satisfy the requirements
of the Communications Assistance for Law Enforcement Act ("CALEA") to ensure
the privacy and security of electronic communications. As we discuss in
these Comments, the Commission has fundamental responsibility, mandated
by law, (1) to protect the privacy interests of those using the Nation's
telecommunications system, and (2) to adopt rules that encourage the
provision of new technologies and services to the public. See CALEA,
Sec. 107(b)(2)(4), 47 U.S.C. ß 1006(b)(2). The Commission should promote
these goals and protect Americans' privacy interests by finding that the
interim standard adopted by industry and the DoJ/FBI's "punchlist" exceed
the scope of CALEA and thus should be rejected.

EPIC, EFF and the ACLU are committed to protecting the privacy rights of
Americansórights that are at the core of this country's Constitutional
heritage and that are firmly established in the laws governing the use of
the country's telecommunications system. As advancing technology increases
the ability of government agents to intercept private communications, the
potential threat to individual liberties grows. Indeed, in an era when the
black rotary phone ruled the land, the Supreme Court held: "Few threats
to liberty exist which are greater than that posed by the use of eavesdropping
devices." Advanced telecommunications equipment and services dramatically
multiply the number of private encounters that take place electronically
and create the potential for government surveillance of these encounters
to be more pervasive and invasive.

Congress traditionally has recognized that the need to protect individual
privacy from government intrusion, the heart of the Fourth Amendment, becomes
ever more critical as the means and opportunities to invade privacy increase.
Beginning with Section 705 of the Communications Act of 1934, Congress has
set out clear rules protecting the privacy of communication and limiting
the government's ability to intercept electronic communications surreptitiously.
In 1968, Congress established a framework to allow wiretapping of telephone
traffic only under the most limited circumstances. Congress made clear in
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title
III" or the "1968 Wiretap Act") that wiretapping was to be an investigative
means of "last resort." The Electronic Communications Privacy Act of 1986
("ECPA") extended privacy protections to a new set of technologies such
as email, cellular phones and paging devices ñ reflecting Congress's
clear intent that privacy rights keep pace with technological advances.

Congress enacted CALEA largely in response to the FBI's concern that new
technologies could be used to thwart criminal investigations and that its
surveillance capabilities should not be diminished as new technologies get
deployed. As FBI Director Freeh testified, "the legislation was intended
to preserve the status quo . . . to provide law enforcement no more and
no less access to information than it had in the past." But, in attempting
to accommodate the FBI's concerns, CALEA also extended privacy protections
to newer technologies and required technical surveillance standards to protect
privacy. The Commission has the authority and, indeed, the responsibility
to ensure that privacy interests are accorded the highest priority in the
implementation of CALEA.

Groups dedicated to the protection of privacy expressed grave reservations
in 1994 about the potential for CALEA to be used improperly by law enforcement
to expand the scope of electronic surveillance; with the filing of the DoJ/FBI
Petition, these concerns were realized. Now, with the release of the Commission's
Further Notice of Proposed Rulemaking, the privacy of our Nation's communications
is seriously at risk. The Commission has tentatively decided to adopt all
of DoJ/FBI's "punchlist" items and to adopt the industry's interim standard
-- J-STD-025 -- with the possible exception of the interim standard's treatment
of packet-mode communications. In explaining its tentative conclusions,
the Commission offers virtually no discussion of privacy interests. The
Commission fails to explain how its tentative conclusions are consistent
with the privacy protections embodied in CALEA, the Fourth Amendment and
Title III of the 1968 Wiretap Act.

Privacy interests had no voice in drafting or adoption of the interim standard.
Having been excluded from these earlier proceedings, it is imperative that
privacy interests, as directed by Congress, be given full consideration
by the Commission. Accordingly, the Commission must confront the privacy
issues raised by the interim standard and the "punchlist" items. Although
the Commission has indicated that it will not attempt to interpret statutes
other than CALEA, the Commission must harmonize CALEA with the constitutional
and statutory limitations on the government's ability to design systems
to facilitate electronic surveillance. The Commission may not implement
requirements under the guise of CALEA that violate CALEA, the Constitution
or Title III. Applying this standard, the Commission should find that the
industry's interim standard and the DoJ/FBI Petition, if granted, would
frustrate the privacy interests of federal statutes and of the Fourth Amendment.
The DoJ/FBI Petition seeks surveillance capabilities that far exceed the
capabilities law enforcement has had in the past and is entitled to under
the law. For these reasons, we urge the Commission to reject the interim
standard and the punchlist items. We address below those items in the interim
standard and the FBI's punchlist that raise the most serious threats to
privacy.

CALEA continues the tradition of enforcing privacy rights in the face
of technological innovation and development. Adhering to the values embodied
in the Fourth Amendment and informed by the policy choices reflected in
the Communications Act of 1934, the Commission must implement CALEA in a
manner that protects the American public's communications privacy to the
greatest extent possible while, at the same time, provides for legitimate
law enforcement needs. CALEA also reflects the unambiguous commitment of
Congress that compliance with law enforcement's needs should not interfere
with the tremendous benefits provided by telecommunications technology and
services. This clear vote of Congress in favor of advanced technology is
found throughout the Act. For instance, Section 103(b) establishes firm
limits on how far law enforcement may go to ensure compliance with CALEA's
capability requirements. Similarly, Section 109(b) directs the Commission
to consider, in determining "reasonably achievable," that "[t]he
policy of the United States [is] to encourage the provision of new
technologies and services to the public." In assessing the interim standard's
treatment of packet-mode communications, the Commission is obligated to
follow the balance that Congress sought to strike between these goals.

J-STD-025 provides that law enforcement must have access to call-identifying
information for packet-mode communications, but it does not require telecommunications
carriers to exclude call content information from packets before providing
the packets to law enforcement over call data channels. In other words,
under J-STD-025, a law enforcement officer with only a pen register order
would be able to receive all of the contents of a subscriber's telephone
conversations in addition to call identifying information. To obtain call
content information under a wiretap order, however, law enforcement is
required to satisfy a much more demanding standard than is required to
obtain call-identifying information under a pen register/trap and trace
device. The reason for this is obvious: electronic surveillance of conversations
poses far greater threats to privacy than does surveillance of the telephone
numbers called from a particular phone or the telephone numbers of calls
placed to a particular phone. Law enforcement may obtain a pen register/trap
and trace device order by demonstrating that the information "likely to
be obtained is relevant to an ongoing criminal investigation being conducted
by that agency." Law enforcement may obtain a wiretap order to seize call-content
information only in connection with certain enumerated crimes and upon
demonstrating that probable cause exists that a crime is being
committed or about to be committed by a particular individual and that
communications concerning that offense will be obtained through the wiretap. Law enforcement must also demonstrate that other investigative
techniques have failed or are too dangerous. The Commission correctly
noted that allowing law enforcement with a pen register/trap and trace
device order to obtain the call content of packet-mode communications
violates the mandate in Section 103(a)(4)(B) of CALEA that telecommunications
carriers provide information to law enforcement "in a manner that protects
. . . the privacy and security of communications . . . not authorized
to be intercepted."

In adopting CALEA, Congress sought to further three interests: the legitimate
surveillance needs of law enforcement; the American public's right to
privacy; and the desire to foster technological innovation. Though nearly
all of the issues before the Commission involve some aspect of new technology,
the undersigned parties representing privacy interests believe that these
profound concerns and competing objectives apply with special force to
the current cutting-edge technology of packet-mode service. In order to
balance these objectives, Congress followed the structure of Title III
of the 1968 Wiretap Act and accordingly limited the ability of law enforcement
to intercept communications.

CALEA imposes four requirements on the telecommunications industry. Three
of the requirements are intended to "preserve" -- not expand or enhance,
but "preserve" -- law enforcement's surveillance capabilities and the
fourth, equally important, is intended to uphold the privacy interests
of the American public. Specifically, carriers must ensure
that their facilities are capable of: (1) expeditiously isolating and
enabling law enforcement to intercept call content; (2) expeditiously
isolating and enabling the government to access reasonably available
"call-identifying information"; (3) delivering intercepted communications
and call-identifying information to the government in a format that allows
them to be transmitted to a law enforcement listening facility; and (4)
doing all of the above three functions "in a manner that protects ...
the privacy and security of communications and call-identifying information
not authorized to be intercepted" and the confidentiality of the interception.
See 47 U.S.C. 1002(a)(1)-(4) (emphasis added).

Moreover, in adopting CALEA, Congress emphasized that the statute's capability
assistance requirements would serve as "both a floor and a ceiling" on
government surveillance demands. Congress acted to protect privacy interests
by refusing to permit the FBI the authority it sought over the implementation
of CALEA, by delegating implementation authority to the Commission, and
by enacting explicit privacy protections. To guarantee that surveillance
is not expanded, CALEA requires telecommunications carriers to protect
user privacy and security of information they are not authorized to intercept.
Indeed, notwithstanding CALEA, it remains a violation of the Communications
Act, punishable by fine of up to $100,000, to unlawfully divulge information
about the existence or content of communications by wire or radio. In
light of this long-standing decision in favor of privacy, Congress directed
the telecommunications industry, law enforcement and the Commission "to
narrowly interpret" the requirements of CALEA.

To require telecommunications carriers to provide call identifying information
without also requiring that call content information be withheld when
law enforcement is authorized to receive only the former would undermine
entirely the privacy protections included in CALEA. As the Commission
stated, "packet-mode telecommunications are expected to grow rapidly in
the near future." The escalating need for high-speed data transmission
services will likely spur the development of packet-mode systems. If the
distinction between call-identifying information and call-content information
is completely eroded for packet-mode communications, the privacy protections
implemented by Congress and courts and relied on by subscribers may all
but disappear. This outcome would be most unfortunate from the perspective
of the American public, which have come to rely increasingly on advanced
packet-mode services for their critical telecommunication needs.

When CALEA was enacted in 1994, packet-mode systems were not widely used
for telecommunications purposes. This was not one of the technological
advances identified by the FBI as hindering surveillance capabilities,
and accordingly CALEA was not enacted to address specifically access to
telecommunications carried on packet-mode systems. In sum, there is nothing
in the statute or the legislative history that justifies granting packet-mode
communications an exception from CALEA's requirement that telecommunications
carriers protect the privacy of communications not authorized to be intercepted.
At minimum, neither the Commission nor law enforcement, nor, for that
matter, the industry, has sufficient experience operating packet-mode
systems to establish intelligent standards for wiretaps in this area.
If DoJ/FBI desire an exception for packet-mode telecommunications from
the requirement in CALEA that carriers provide privacy and security for
communications not authorized to be received, they must obtain such an
exception from Congress.

The Commission should reject the DoJ/FBI bid for call-identifying plus
content information because providing the call-identifying information
is not "reasonably achievable." Pursuant to CALEA, a carrier must isolate
and provide law enforcement authorization to call-identifying information
"that is reasonably available to the carrier." If call-identifying information
cannot be separated from call-content information, then it is not "reasonably
available" and therefore should not be provided. DoJ/FBI have failed to
satisfy their burden of establishing that call-identifying information
is readily available. Until DoJ/FBI meet this burden, call-identifying
information for packet-mode systems should be excluded from the capability
requirements of CALEA.

2. Permitting
Law Enforcement to Obtain Call Content Information in Packet-Mode Communications
Without Proper Authorization Violates the Fourth Amendment and Title
III of the 1968 Wiretap Act.

Allowing law enforcement to obtain call content information with only
a pen register represents a dangerous expansion of law enforcement and
would violate the "particularity" requirements of the Fourth Amendment
and Title III of the 1968 Wiretap Act. Subjects of electronic surveillance
are protected by the Fourth Amendment's restrictions on searches and seizures.
In Berger v. New York, the Supreme Court held that lengthy, continuous
or indiscriminate electronic surveillance violated the Fourth Amendment.
Likewise, Katz v. United States held that electronic surveillance
was constitutionally permissible if it were short, directed to intercept
only a few conversations, approved in advance by a judge, and supported
by a special showing of need.

Title III of the 1968 Wiretap Act, which was enacted a year after Berger
and Katz, was Congress' response in the form of national legislation
to a body of law "totally unsatisfactory in its consequences" for privacy
and justice. Title III had two purposes: (1) protecting the privacy of
wire and oral communications, and (2) providing a uniform basis for authorizing
law enforcement personnel to intercept those communications. Title III
devoted special attention to individual privacy concerns, in part because
electronic surveillance poses greater threats to privacy than do the physical
searches and seizures that inspired the Fourth Amendment. Electronic surveillance
tends to be indiscriminate, catching communications that may not even
be relevant to an investigation much less contemplated by a court order.
Electronic surveillance also tends to extend for long stretches of time.
Moreover, it is conducted surreptitiously and without notice to the subject
or to other persons participating in electronic communications. All of
these features distinguish it from searches and seizures that must be
particular and conducted with "knock and notice." To mitigate some of
the more dangerous characteristics of electronic surveillance, among other
things, Title III requires that government surveillance must be, inter
alia, for limited periods of time, for specified crimes, and only
as a last resort.

Title III's privacy safeguards in the form of particularity requirements
are derived directly from Berger. Because eavesdropping is a broad
intrusion on privacy, "[t]he need for particularity and evidence
of reliability in the showing required when judicial authorization of
a search is sought is especially great in the case of eavesdropping."
The Berger Court found that New York's eavesdropping statute was
a "blanket grant of permission . . . without adequate judicial supervision
or protective procedures." Despite the state's contention that eavesdropping
was a crucially important investigative technique, the Court refused to
diminish the importance of the Fourth Amendment for the sake of law enforcement.
"Few threats to liberty exist which are greater than that posed by the
use of eavesdropping devices."

Allowing law enforcement to obtain the full content of customer communications
from carriers using packet switching even when the government is authorized
to intercept only addressing or signaling data would permit the same type
of indiscriminate electronic surveillance found unconstitutional in Berger.
Law enforcement would be given a "blanket grant of permission" to review
call content without being subject to adequate judicial supervision or
the protective procedures of Title III.

The answer that law enforcement would minimize unauthorized communications
obtained by surveillance methods is inadequate. Were the framers of our
Constitution confident that law enforcement would not engage in unwarranted
searches and seizures, they would not have included the Fourth Amendment.
Were Congress confident that law enforcement personnel would scrupulously
avoid all unauthorized communications, it would not have adopted the privacy
mandates in CALEA or Title III. Instead of relying on blind faith, Congress
adopted safeguards to protect the privacy of Americans. Those safeguards
are enshrined in Title III and CALEA, and should not be abandoned in this
proceeding.

B.The
Location Tracking Provisions Contained in the Industry Standard Are Neither
Contemplated Nor Permitted Under CALEA, and Law Enforcement Access to
that Information Without a Warrant Would Result in an Unconstitutional
Invasion of Privacy.

The industry standard contains provisions that would identify the location
of a cellular telephone user's "mobile terminal." As the Commission noted
in the Further Notice, the industry standard provision is vaguely
written. The standard does not state whether telecommunications carriers
would be required to track the precise location of the handset or the
location of the cell site to which the handset is connected. The Commission's
statement that law enforcement and the industry "appear now to agree that
the standard covers only the location of the cell site, and only at the
beginning and termination of a call," and its suggestion that location
tracking information would be available to law enforcement "irrespective
of whether a call content or call data channel was employed," highlight
the confusion concerning the scope of the location tracking provision
contained in the industry standard.

It is clear from CALEA's language and its legislative history that Congress
did not intend for law enforcement to gain access to location tracking
information under the statute. The statute plainly states that, to the
extent telecommunications carriers are obliged to facilitate law enforcement
access to "call identifying information," such information "shall not
include any information that may disclose the physical location of the
subscriber (except to the extent that the location may be determined from
the telephone number)." The House Judiciary Committee Report plainly
states that CALEA "requires telecommunications carriers to ensure that
their systems have the capability to . . . [i]solate expeditiously
information identifying the originating and destination number of targeted
communications, but not the physical location of targets[.]"
It is obvious that Congress did not contemplate in CALEA the release of
location tracking data to law enforcement. Rather, Congress recognized
that if law enforcement requires tracking information to assist in a criminal
investigation, it must obtain a warrant that satisfies Fourth Amendment
and Title III standards.

The DoJ/FBI position in this proceeding is particularly surprising, given
its contradictory statements made during hearings as Congress was debating
CALEA. FBI Director Freeh testified that call setup or identification
information:

does not include any information that might disclose the general location
of a mobile facility or service, beyond that associated with the area
code or exchange of the facility or service. There is no intent whatsoever,
with reference to this term, to acquire anything that could properly be
called "tracking" information.

The FBI cannot assert, when testifying before Congress, that CALEA does not
require or even permit telecommunications carriers to provide location tracking
information to law enforcement, and then claim the exact opposite after Congress
acted in reliance upon the FBI's assurances. To accept law enforcement's arguments
at this stage would permit the FBI to complete an end-run around the legislative
process and Congress's reliance on the testimony of FBI Director Freeh.

Regulations requiring location tracking information not only would violate
the terms of the statute and congressional intent, but also would interfere
with privacy interests shielded by the Fourth Amendment. The Supreme Court
has held that governmental agents violate the Fourth Amendment when they use
tracking devices to locate people or property in private areas. In United
States v. Karo, law enforcement agents installed a tracking device into
a container of chemicals sold to an unwitting buyer. The agents then used
the tracking device to follow the buyer's movement into his private residence.

The Court drew a sharp distinction between the use of a tracking device to
follow an individual's movement in public areas and in areas "not open to
visual surveillance." The Court stated that "[i]ndiscriminate monitoring"
of a person's or his property's location in areas "withdrawn from public view
would present far too serious a threat to privacy interests" protected under
the Fourth Amendment. Visual surveillance might enable government agents to
confirm that a person has entered into a private residence or other protected
area, but location tracking equipment reveals a "critical fact about the interior
of the premises that the Government is extremely interested in knowing and
that it could not have otherwise obtained without a warrant."

It is obvious that law enforcement would benefit from acquiring location
tracking information from telecommunications carriers without the burden of
securing a warrant, but its argument "is based upon its depreciation of the
benefits and exaggeration of the difficulties associated with procurement
of a warrant." Investigative efficiency, while important for law enforcement
purposes, is not sufficient justification for overriding fundamental privacy
interests protected by the Fourth Amendment. CALEA does not contemplate the
provision of any location tracking information, let alone the indiscriminate
form of tracking sought by the DoJ/FBI.

Law enforcement has been surviving without telephone location tracking information
for centuries. DoJ/FBI readily concede that CALEA "does not expand law enforcement
agencies' power or authority to conduct electronic surveillance; that authority
continues to be defined principally by Title III." It is clear that law enforcement
has never utilized location tracking information before and the use of such
technology would, in fact, expand the government's ability to conduct
electronic surveillance while making traditional methods of surveillance unnecessary.
As such, Congress did not consider and CALEA does not permit regulations enabling
law enforcement to gain access to that information.

DoJ/FBI argue that it has been able to obtain the "location" of callers in
the wired environment whenever it has pen register or trap and trace authority,
because the telephone number that is revealed is associated with the particular
address at which a caller must be located. But it is not convincing to state
in a conclusory fashion that location information is available in a wired
environment and therefore the same information should be available in a wireless
environment. The fundamental purpose of pen register or trap and trace orders
is to provide law enforcement with the identity of callers, not their physical
location. The location information that is revealed in a wired setting is
simply a by-product of that environment, where each telephone number is assigned
to a physical location. Access to a wired telephone number automatically provides
access to the physical location of the telephone.

In a wireless environment, standard pen register or trap and trace authority
can still reveal the information lawfully sought by DoJ/FBI: the telephone
number of originating and terminating traffic. At the same time, there is
no physical location automatically associated with a cellular telephone number,
so law enforcement cannot obtain that information by default. Because of the
mobility involved in wireless communications, however, the physical location
of a caller may reveal sensitive or confidential information concerning the
caller's travels that law enforcement has no right to receive under the limited
authority of a pen register or trap and trace order. For instance, a cellular
caller may be using his telephone in his attorney's office while conducting
privileged business or from the home of a romantic partner. Law enforcement
should not be allowed to follow an individual's daily movements through private
areas simply because the individual happens to use his cellular telephone.
If law enforcement officers wish to track someone, they can use traditional
surveillance methods and stakeouts to follow a person's progress through public
areas.

DoJ/FBI have suggested that telecommunications carriers already will have
the capability of tracking an individual's location through implementation
of the tracking requirements for enhanced 911 ("E911") services. Under the
telecommunications industry's E911 obligations, it will be possible to determine
a mobile telephone user's location when the user dials 911. That the industry
will have the capability of determining a user's location when the user has
initiated a call to emergency personnel, however, does not mean that the technology
should, or even could, be used to track that user's location when there has
been no call to 911. The industry's E911 obligations can be satisfied in ways
that do not accomplish the routine tracking results sought by law enforcement,
so it is incorrect to assume that the industry already will have the capability
to track locations whenever a cellular telephone is turned on or in use.

E911 tracking will not operate as a general homing device, monitoring a cellular
user's location at all times when the telephone is in use. Rather, the E911
tracking capability will only be activated when an emergency call is initiated
by the user. By dialing 911, the cellular telephone user implicitly has consented
to having his location tracked. But the DoJ/FBI Petition turns this life-saving
service on its head. DoJ/FBI envision a far different form of tracking, one
which could be activated without the user's knowledge and which could track
the user in non-emergency situations. In that context, the cellular user certainly
has not consented to being tracked and there has been no waiver of the user's
right to travel in private areas free from governmental monitoring.

The fact that the telecommunications industry may have consented to the DoJ/FBI
request to develop technology that can track telephone users' locations twenty-four
hours a day does not in any way alter the conclusion that wireless telephone
users' privacy rights are jeopardized by the industry standard. The Commission
is obligated to examine each issue closely, and it should not easily be swayed
by industry acquiescence. The industry may have financial or business-related
reasons to go along with the DoJ/FBI request, but those reasons do not take
into account the privacy interests of cellular users. The industry's willingness
to develop technology that it is already partially required to develop in
order to fulfill its E911 duties does not foreclose the Commission's statutory
duty to examine the industry standard and protect the "privacy and security
of communications and call-identifying information not authorized to be intercepted."
The Commission must exercise its duty and reject the industry standard for
location tracking information.

II.ISSUES
RAISED BY THE DoJ/FBI "PUNCHLIST"

A. Expanded
Access to Conversations of Participants in Subject-Initiated Conference
Calls Is Inconsistent with Statutory and Constitutional Limitations.

The Commission's tentative conclusion to require that law enforcement have
the ability to monitor conversations connected via conference call even after
the subject, or someone using the subject's facilities, drops off significantly
expands Title III's "facilities" doctrine. Title III permits law enforcement
to monitor conversations taking place over the facilities of the intercept
subject. "Facilities" have traditionally been considered for Title III purposes
as the subscriber's terminal equipment. The DoJ/FBI Petition seeks to expand
the "facilities" doctrine to include a subscriber's facilities and services
and any network facilities that support the subscriber's services.

For example, when a subscriber initiates a conference call, a "conference
bridge" is allocated to the conversation from a "pool" of similar bridges
located at the local exchange carrier's switch. These bridges are shared by
all subscribers of the conference calling service. According to current practice
of law enforcement and consistent with the FCC's precedent, the "subscriber
facility" is the connection between a subscriber's phone and the subscriber
side port of the carrier's switch. Beyond that point, only network resources
are used. Thus, the law enforcement agency with authority to monitor only
the subject's facilities is not permitted to trace conversations on
those network resources once the subscriber disconnects. The fact that law
enforcement currently hears three parties on a conversation of a tapped line
is a function of all the conversations appearing on the target's side of the
bridge, not that the law enforcement authority is actually in the middle of
the bridge. If the target disconnects, his or her facility also is disconnected;
thus, the law enforcement authority has no connection to the subscriber's
facility that built the conference call bridge.

However, under the DoJ/FBI's interpretation of CALEA's requirements, any
conference call initiated by the target's facilities would be subject to an
ongoing intercept even after the target ñ or someone using the target's
phone ñ disconnects. Thus, carriers would have to provide access to
any continuing conversations between the other participants of the conference
call. Pursuant to CALEA, law enforcement, with appropriate authorization,
is entitled to "intercept, to the exclusion of any other communications, all
wire and electronic communications carried by the carrier within a service
area to or from equipment, facilities or services of a subscriber." Interpreting
the word "services" to expand dramatically the facilities doctrine cannot
be squared with Congress' intent in adopting CALEA or the limitations of the
Fourth Amendment.

In adopting CALEA, Congress intended the assistance requirements to be "both
a floor and a ceiling." Congress took special notice of the statement by the
FBI Director that "the legislation was intended to preserve the status quo,
that it was intended to provide law enforcement no more and no less access
to information that it had in the past." Congress "urge[d] against
overbroad interpretation of [CALEA's] requirements," and stated that
it "expects industry, law enforcement and the FCC to narrowly interpret the
requirements."

The DoJ/FBI Petition seeks to expand law enforcement surveillance capabilities
to include conversations between participants in a conference call that are
no longer using the equipment or facilities of the intercept subject. The
DoJ/FBI Petition has requested that the Commission require carriers to provide
law enforcement with the capability to monitor a conference call, which was
set up using the subject's facilities, after the person using the subject's
facilities has hung up or placed the other participants on hold. In other
words, the DoJ/FBI Petition seeks to monitor conversations that cannot be
heard over the intercept subject's facilities. Though DoJ/FBI acknowledge
that this would be an expansion of law enforcement's current capabilities,
they nonetheless maintain that it falls under the obligations of CALEA.

The Commission's tentative conclusion adopting the DoJ/FBI Petition's interpretation
fails to justify this expansion of the "facilities" doctrine in light of the
direct instruction from Congress that the Commission should "narrowly interpret"
the requirements of CALEA. Indeed, the Commission appears uncomfortable accepting
DoJ/FBI's interpretation of the term "services" to include network facilities
because that expanded interpretation could have far-reaching implications.
In the Further Notice, the Commission has proposed limiting a carrier's
requirement to provide to law enforcement the call content of the remaining
parties to a conference call after the target -- or someone using the target's
telephone -- drops off only when "the call nonetheless remains routed through
the subscriber's 'equipment, facilities or services.'" If the conversation
between the remaining parties is either disconnected or rerouted so that the
"equipment, facilities or services of the subscriber" are no longer used to
maintain the conference call, carriers would not have to provide law enforcement
with access to the remaining call content.

In other words, the Commission appears to be reaching for a requirement that
call content of a conference call be provided only when the target's "facilities"
are being used. Because CALEA was not intended to expand surveillance capabilities,
the definition of "facilities" should continue to be limited to a subscriber's
terminal equipment. Once the target's terminal equipment is no longer in use,
surveillance of the call ceases. Accordingly, once a target puts a conference
call on hold (or disconnects),both the target's and law enforcement's
ability to hear other parties should terminate.

Expanded access to conference call content would also violate the privacy
protections of the Fourth Amendment. Allowing law enforcement to continue
to listen to the conversation of participants to a conference call after the
subject's facilities have been disconnected would amount to giving law enforcement
"a roving commission to ëseizeí any and all conversations" without
having established probable cause to do so. "The purpose of the probable-cause
requirement of the Fourth Amendment is to keep the state out of constitutionally
protected areas until it has reason to believe that a specific crime has been
committed[.]" If law enforcement may monitor conversations between
individuals who are not subject to a surveillance order and who are not using
facilities that are subject to a surveillance order, the probable-cause requirement
would be wholly avoided. Surveillance would not be circumscribed, but instead
would amount to a fishing expedition, with law enforcement listening to conversations
that involve neither the intercept subject nor his or her facilities for any
potential criminal activity. Such surveillance violates the particularity
requirement and the probable cause requirement of the Fourth Amendment.

DoJ/FBI seek to sweep within the definition of "call-identifying information"
other types of signaling information that fall outside the scope of CALEA.
The legislative history clarifies that call-identifying information is limited
to "electronic pulses, audio tones, or signaling messages that identify the
numbers dialed or otherwise transmitted for the purpose of routing calls through
the telecommunications carrier's network." The legislative history further
clarifies that in pen register investigations, call-identifying information
refers to the pulses, tones or messages that "identify the numbers dialed
from the facility that is the subject of the court order." In trap and trace
investigations, call-signaling information refers to incoming pulses, tones
or messages that "identify the originating number of the facility from which
the call was placed and which are captured when directed to the facility that
is the subject of the court order." To emphasize that call-signaling information
is limited to pulses and tones that identify incoming or outgoing phone numbers,
Congress further stated that "[o]ther dialing tones that may be generated
by the sender that are used to signal customer premises equipment of the recipient
are not to be treated as call-identifying information."

Despite this clear statement of Congressional intent, DoJ/FBI seek to expand
the definition of call-signaling information beyond the signals and tones
initiating a call to include signal and tones used "to manipulate the call."
For example, DoJ/FBI request that carriers be required to notify law enforcement
when the subject has pressed the flash hook indicating call waiting or the
placing of a party on hold. DoJ/FBI also want carriers to provide party hold,
party join and party drop messages. As these signaling tones do not identify
the telephone number dialed by the subject subscriber or the telephone numbers
of incoming calls to the subject subscriber, they exceed the scope of CALEA.
"In pen register investigations, these pulses, tones or messages identify
the numbers dialed from the facility that is the subject of the court order
. . . . Other dialing tones that may be generated by the sender that are used
to signal customer premises equipment of the recipient are not to be treated
as call-identifying information."

The Commission's tentative conclusion that such signaling information "identifies
the origin, direction, destination or termination" of a communication and
therefore must be made available under CALEA is inconsistent with the legislative
history of CALEA and expands the type of call-identification information traditionally
available to law enforcement. As is true with a number of other bits of information
discussed in this proceeding, law enforcement may be able to obtain this kind
of information with the appropriate court order, but that conclusion does
not mandate that such information necessarily be made under CALEA. Neither
the Commission nor CALEA is the sole means to satisfy law enforcement's legitimate
need for information. Because Congress directed the Commission to interpret
CALEA narrowly, this expansion is unwarranted.

C.CALEA
Does Not Permit Law Enforcement to Obtain Post-Cut-Through Digits Through
a Pen Register Order Directed at the Initial Telecommunications Carrier.

DoJ/FBI seek regulations requiring telecommunications carriers to provide
law enforcement with post-cut-through dialed digits, arguing that the digits
amount to "call identifying information" under CALEA. The dialed digits sought
by law enforcement do not qualify as "call identifying information," nor are
they "reasonably available" to carriers. For both reasons, the Commission
must reject DoJ/FBI's request for regulations requiring disclosure of this
information.

CALEA defines "call identifying information" as "dialing or signaling information
that identifies the origin, direction, destination, or termination of each
communication generated or received by a subscriber by means of any equipment,
facility, or service of a telecommunications carrier." Comments from the telecommunications
industry universally establish that, from the initial carrier's standpoint,
the call is outside the purview of the initiating carrier once the subscriber
has connected to the long distance carrier. As the FCC has acknowledged, the
initial numbers dialed to reach the long distance provider are transmitted
over the initial carrier's call data channel, but the second set of numbers
dialed once the subscriber is connected to the long distance provider are
transmitted along with voice and other content on the initial carrier's call
content channel.

The post-cut-through numbers are carried on the initial carrier's call content
channel, so they must be treated the same as other call content and not revealed
to law enforcement through a pen register order served on the local carrier.
Because the post-cut-through digits are transmitted in the call content portion
of the local provider's transmission, access to that information must be analyzed
as if law enforcement were trying to access any other call content. Information
contained in the call content portion of a transmission does not qualify as
"call identifying information," because it does not identify the "origin,
direction, destination or termination" of the initial carrier's communication.
The digits dialed by the subscriber once he or she has connected to the long
distance carrier may qualify as "call identifying information" for the long
distance carrier, but not for the local telecommunications service.

In many cases, post-cut-through digits may reveal credit card numbers, personal
identification numbers, bank account numbers and information, responses to
automated systems, substantive messages sent to pagers or other content-laden
data that has nothing to do with the ultimate telephone number being dialed.
Clearly this information, along with the conversations themselves contained
in the call content channel transmission, exceeds the scope of "call identifying
information" under CALEA. The Justice Department has conceded in another context
that "electronic impulses" transmitted after a telephone call has connected
to the called party are "substantive in nature" and "are the 'contents' of
the call." The government appears to be in agreement, then, that digits entered
after the caller has connected to the long distance carrier contain information
that does more than identify the "origin, direction, destination, or termination"
of a call, as required for "call identifying information."

Law enforcement apparently desires to sweep all of this substantive content
under the heading of "call identifying information," which would permit government
access to post-cut-through digits with only a pen register order. It is clear
that a pen register order only permits law enforcement agencies to access
"electronic or other impulses which identify the numbers dialed or otherwise
transmitted on the telephone line." To the extent that post-cut-through digits
are contained in call content channel transmissions, law enforcement has no
authority to access them with nothing more than a pen register order. The
Commission should reject the FBI's attempt to gain through the back door what
it otherwise is prohibited from obtaining directly. Post-cut-through digits
are not "call identifying information" under CALEA. The Commission must exercise
its duty under CALEA to protect the "privacy and security of communications
and call-identifying information not authorized to be intercepted."

Even if it finds that post-cut-through digits qualify as "call identifying
information," the Commission should reject DoJ/FBI's approach. Telecommunications
carriers are only required to ensure that their equipment is capable of "isolating
and enabling the government, pursuant to a court order or other lawful authorization,
to access call-identifying information that is reasonably available to
the carrier." The legislative history is clear that "if such information
is not reasonably available, the carrier does not have to modify its system
to make it available." CALEA was "not intended to guarantee ëone-stop
shoppingí for law enforcement."

Members of the telecommunications industry are in agreement that technology
currently does not permit the initial carrier to separate post-cut-through
digits used to dial the final party's telephone number from other digits or
content contained in the call content channel transmission. Currently, telephone
switches use a "tone receiver" to detect dialed digits. Once a call is cut
through to the recipient of the call (whether the recipient is another person
or an automated long distance carrier), the tone receiver is disconnected
from the call circuit and is available for use on other calls. As TIA pointed
out, "it would require major system modifications to dedicate a tone receiver
for the duration of each call, which would be necessary to detect post-cut-through
digits and deliver them to law enforcement." With the advent of new technology,
such as voice-recognition dialing, the difficulty and expense in discovering
and recording post-cut-through digits will only increase.

Vendors have advised that the development costs for digital dial extraction
technology that could separate digits used to dial a second telephone number
from other material contained in the call content channel would likely exceed
the development costs for all of the other items contained in DoJ/FBI's punchlist.
The Commission is only authorized to issue regulations that implement the
requirements of CALEA "by cost effective methods." Clearly, there is no cost-effective
way to require telecommunications carriers to separate certain post-cut-through
digits from other call content, so regulations requiring such an end are inappropriate.

The industry has shown that such technology currently does not exist and
would be extremely expensive to develop. The burden lies with law enforcement,
which concedes that post-cut-through digits are contained in call content
channel transmissions that are excluded from CALEA, to establish that reasonable
means exist to limit the data received from the call content channel to the
final telephone number dialed. If law enforcement cannot meet its burden,
then it cannot obtain access to post-cut-through digits.

DoJ/FBI may argue that its ability to investigate potential crimes is being
thwarted by clever suspects who intentionally route their calls through long
distance carriers to evade pen registers attached to their local service.
The Commission must reject law enforcement's contention that it should be
free under CALEA to receive post-cut-through digits that are interwoven with
call content without a warrant simply because "there is justification in the
facts for believing that a crime is being or will be committed and that monitoring
the [call] wherever it goes is likely to produce evidence of criminal
activity." CALEA does not permit such access simply to make law enforcement
investigations easier or less burdensome.

DoJ/FBI also argue that law enforcement has had access to call content in
the analog environment with only a pen register order, and law enforcement
officers have selectively chosen not to listen to call content once they have
identified the parties involved in the conversation. To the extent that that
situation occurs, it is an abnormality of the analog environment and should
not be extended to digital communications. While many law enforcement officers
execute their duties in a manner faithful to their constitutional and legal
obligations, the law does not permit government agents to police their own
conduct entirely free from outside supervision. In a number of well-publicized
situations, law enforcement officers have flagrantly and systematically disregarded
their duty to minimize intrusions into the private electronic communications
of individuals who were not even criminal suspects. If technology currently
does not allow telecommunications services to separate post-cut-through digits
used to dial a second telephone from the remainder of the call content channel
transmission, law enforcement has no authority under CALEA to obtain access
to those digits.

DoJ/FBI argue that any information pertaining to the ultimate telephone number
with which the suspect connects is "call identifying information," regardless
of the channel in which the information is transmitted. An example shows the
far-reaching implications of DoJ/FBI's proposal. Assume a target dials an
800-number to reach a long distance provider. Rather than typing in the telephone
number he seeks to reach, he waits for the long distance operator to pick
up, and asks the operator to complete the call. Under DoJ/FBI's reasoning,
the conversation between the suspect and the operator would be "call identifying
information," because it would involve the "direction" or "destination" of
his initial call.

It should be obvious that actual conversations between two people amount
to call content, not "call identifying information." If DoJ/FBI's position
were adopted, however, the line between the two would be impermissibly and
dangerously blurred. The Commission must not succumb to law enforcement's
attractive argument that its proposals must be adopted in order to battle
criminals on an even playing field. Law enforcement already has access to
post-cut-through digits by obtaining a warrant under Title III, so denying
law enforcement agencies access to post-cut-through digits under CALEA does
not impede their ability to investigate crimes. The important issue, however,
is whether law enforcement was given special access rights under CALEA, or
if law enforcement must rely on its remedies available under Title III and
the Fourth Amendment. It is clear that CALEA was meant to preserve law enforcement's
access rights, not enhance them. DoJ/FBI's arguments must be rejected.

III.THE
COMMISSION'S DECISION TO FORECLOSE COMMENT ON "UNCONTESTED" ISSUES IMPROPERLY
INSULATES THE LAW ENFORCEMENT-INDUSTRY STANDARD FROM PUBLIC SCRUTINY.

As EPIC, EFF and ACLU pointed out in initial comments on the DoJ/FBI Petition,
public interest organizations dedicated to upholding the publicís right
to privacy did not have an effective voice in the proceedings that led up
to the J-STD-025 standard and the FBIís "punchlist" As the Commission
apparently recognizes, law enforcement organizations and the telecommunications
industry had extensive meetings to agree on a standard and organizations representing
the public were excluded from these meetings. Remarkably, the Commission has
chosen to compound that clear error rather than resolve it.

In the Further Notice, the Commission makes the apparently final decision
that it "do[es] not intend to reexamine any of the uncontested technical
requirements of the J-STD-025 standard." The determination of what elements
are "uncontested" apparently has been made by reference to comments filed
on the DoJ/FBI Petition. The decision to foreclose public participation by
an administrative agency is remarkable at any point, but particularly so at
the point of commencing a rulemaking proceeding in a notice of proposed
rulemaking rather than a final order. The Commissionís determination
that it will not issue a traditional notice of proposed rulemaking explaining
the standard it proposes to approve and seeking public comment on that standard
-- and, indeed, foreclosing any comment by any member of the public on elements
of the standard that were not "contested" when petitions for rulemaking were
filed -- ensures that the public will have no opportunity to be effectively
apprised of the contents of the standard that will determine the wiretap functions
that will be built into the Nationís telecommunications system. Narrowly,
making a final decision of this scope in a notice of proposed rulemaking is
inconsistent with the Administrate Procedure Act; broadly, foreclosing discussion
of a standard arrived at solely by industry and law enforcement undermines
the value of the Commissionís overall authority over the process that
has led to that standard.

The Commission further gives short shrift to our request that it review the
issues in the J-STD-025 standard and the punchlist de novo, apparently
finding that the ability to cast a ballot on the proposed standard absolved
industry and law enforcement of any responsibility to permit public participation
in the process leading up to the adoption of the standard. Of course, having
the opportunity to cast a ballot after being foreclosed from participating
in months-long technical discussions and negotiations is an entirely ineffective
substitute for the opportunity to participate fully. The right to vote without
the corresponding ability to obtain the critical information on which a ballot
will be cast is meaningless. Because of the complexity of the technical issues
and the societal importance of the decisions to be made, the Commission should
have commenced a rulemaking proceeding to investigate these issues de novo
rather than compound the closed nature of the process by refusing comment
on the "uncontested" elements of the law-enforcement/industry standard.

IV. CONCLUSION

For all of the foregoing reasons, we urge the Commission to reject the industry
standard and the FBI punchlist proposals and to exercise its duty under CALEA
to protect the individual privacy that is a vital component of our Nation's
foundation.